Charge Him Now: Obstruction of Justice

Remember this? It was news in May 2019:

President D___ T___ would have been indicted for obstruction of justice in special counsel Robert Mueller’s investigation if he did not hold the nation’s highest office, nearly 700 former federal prosecutors argued in an open letter published on Medium on Monday.

The ex-prosecutors — who have served under both Republican and Democratic administrations dating back to President Dwight D. Eisenhower — said Attorney General William Barr’s decision not to charge T___ with obstruction “runs counter to logic and our experience.”

The letter added, “Each of us believes that the conduct of President T___ described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

“We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report,” the letter continued.

The Mueller report cited 10 episodes indicating that T____ could be prosecuted after he left office. He left office more than six months ago, but there is no sign so far that the Department of Justice is pursuing the matter.

Before leaving office, the former president also tried to overturn the results of the election. I’m not sure there is anything in federal law that explicitly makes that behavior illegal. The laws against treason and sedition are narrowly written and may not apply to a president doing everything he can to illegally remain in office. Congress probably never imagined that kind of behavior.

Nevertheless, this latest news is remarkable:

Former President D____ T____ . . . explicitly pressured {the acting attorney general] to declare the 2020 election “corrupt” in a December phone call, according to documents published Friday by the House Oversight and Reform Committee. [They are] the most recent evidence of T____’s extraordinary campaign to overturn the election’s results.

The House committee—which is investigating the T____ administration’s potentially unlawful efforts to influence the outcome of the election—made public notes taken by former acting Attorney General Jeffrey Rosen’s deputy, Richard Donoghue, during a Dec. 27 phone call between T____ and top officials from the Department of Justice.

In the notes summarizing the call, Donoghue recalled T____ asking Rosen and other top officials to “just say that the election was corrupt + leave the rest to me” and congressional allies [Forbes].

But, according to The Guardian:

D____ T____ insisted on Saturday that when he told senior justice department officials to “Just say that the election was corrupt [and] leave the rest to me”, he was not attempting to subvert US democracy, but to “uphold the integrity and honesty of elections and the sanctity of our vote”. . . .

One Washington editor, Benjy Sarlin of NBC News, wrote on Twitter: “We can’t take a continuous historic scandal for granted just because he says it out loud all the time. These are Watergate-level allegations.”

On Friday, Carolyn Maloney, chair of the House oversight committee, said: “These handwritten notes show that President T____ directly instructed our nation’s top law enforcement agency to take steps to overturn a free and fair election.”

If that isn’t treason or sedition, strictly speaking, it sure sounds like “interference with the orderly administration of law and justice”, i.e. obstruction.

The Department of Justice has work to do in the matter of former president D___ J. T____.

Or doesn’t the rule of law apply to him?

Where’s the Justice?

It’s better to be frustrated and impatient than angry and horrified, so getting a new president and administration that isn’t made up of idiots, creeps and criminals is a blessing.

Nevertheless, I never expected to be thinking so much about a few Democratic senators, especially that two-headed, pro-filibuster creature we might as well call “Manchinema”. There is so much that could be accomplished with Joe Biden as president, a small majority in the House and 50 votes in the Senate.

Unfortunately, another source of frustration and impatience at the moment is Attorney General Merrick Garland and the talented lawyers who work for him.

As Jennifer Rubin of The Washington Post points out:

[Garland] has . . .  never indicated as to whether, now that former president X is out of office, the department would follow up on alleged illegal conduct examined by special counsel Robert S. Mueller III (e.g., obstruction of justice, perjury, witness tampering). 

Here’s more on that story from Washington Monthly’s Jennifer Taub:

Special Counsel Robert Mueller’s Report on Russian Interference in the 2016 Election was released to the public on April 18, 2019 (in redacted form). Volume II provided a clear, detailed roadmap for a post-term prosecution of X for a variety of obstruction-of-justice offenses. The Report noted that while the Justice Department policy forbids prosecuting a president while in office, “Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”

This should have been a bombshell. But, thanks to [former Attorney General] Barr’s words and actions almost a month earlier, selling the report as an exoneration of X, [it] fizzled. (In a particularly egregious headline, the New York Times said that Mueller exonerated X, not even attributing it to Barr.) By the time we got to read the report, Barr’s characterizations had been disproved, but by then the press and public yawned.

Let’s recall what Barr did. On March 22, 2019, the Justice Department received a confidential copy of the 448-page Mueller Report. A former AG and political player for decades, Barr surely saw how damaging it was, so he did not share it. Instead, two days later, on March 24, Barr delivered a four-page letter to Congressional leaders (which was then released to the public). The letter purported to “summarize” the Mueller Report’s “principal conclusions.” But Barr did not provide a truthful summary; he concocted a cynical spin.

Regarding obstruction of justice, Barr said Mueller had concluded that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”

This was a shocking revelation. . . .  In a Politico roundup published that day, I contended that “Barr’s conclusions are not credible.”  It took reading between the lines to appreciate his hustle. But, instead of respecting Mueller’s refusal to clear X, Barr told Congress that this meant it was now his job to come to a legal conclusion. But, it was not. Doing so undermined the entire purpose of the Special Counsel statute, which was NOT to leave such a decision in the Attorney General’s hands. Barr claimed that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

Thanks to Barr, many wrongly believe Mueller exonerated X. Around 60 percent of Americans either thought the president had been cleared or were unsure. Only 40 percent correctly understood that Mueller did not exonerate X.

Disappointingly, Merrick Garland’s Justice Department [has chosen] to continue the cover-up. Here’s a little background to explain how this happened and the alternative path Garland could have taken.

Back in April of 2019, Barr said that he relied on advice from the Justice Department’s Office of Legal Counsel before drafting his March 24 communication to Congress about the Mueller Report. In response, the non-partisan, public interest organization Citizens for Responsibility and Ethics in Washington (CREW) sued the Department under the Freedom of Information Act (FOIA), requesting all related documents.

[The Justice Department] told the judge that one of the documents that CREW wanted was protected from public disclosure under the FOIA law under the “deliberative process privilege.” They argued this particular March 24, 2019 memo from the Office of Legal Counsel to Barr was “pre-decisional” as they claimed it was given to Barr before he made his final decision on whether Trump obstructed justice. And they claimed that it was “deliberative” because it was provided to aid him in his decision-making process.”

On May 4 of this year, Judge Amy Berman Jackson called bullshit on those claims, to put it mildly. In a stinging opinion, she ruled in favor of CREW and ordered Garland’s Justice Department to hand over the memo. . . . Berman Jackson wrote that “there was no decision actually being made as to whether the then-President should be prosecuted.” She saw the DOJ as “girding for a preemptive strike on the Mueller report.” The memo was not shielded as pre-decisional legal advice.

As I wrote in the Washington Monthly at the time, this was Garland’s inflection point. It would have been so very easy to decide not to appeal and to allow the memo to be released. Instead, Garland’s DOJ lawyers doubled down on the deception. On May 25, Garland had his team ask Judge Jackson to stay her order (put it on hold) so they could keep the memo hidden while they appealed her decision. . . . 

Garland’s decision shocked and disappointed many experts. Former Solicitor General Neal Katyal penned an opinion piece arguing that “the American people have a right to see the memo. Then they can decide whether Mr. Barr used his power as the nation’s chief law enforcement officer as a shield to protect the president” . . . 

Garland, who served on the D.C. Circuit Court of Appeals from 1997 to 2021, might have additionally justified releasing the memo to the public on principle. Anyone with eyes could see that both Barr and Justice Department lawyers (still employed by Garland) misled a federal judge. A strong manager would make it clear that dishonesty would no longer be tolerated under his leadership. As a former DOJ prosecutor—after the Oklahoma City bombing Garland left private practice to prosecute domestic terrorism—Garland should have been incensed. As Bob Dole used to say, “Where’s the outrage?” . . . 

Unquote.

Whether that memo is ever made public is much less important than whether our former president (aka the unindicted co-conspirator) is ever prosecuted. Now that he’s no longer shielded by the presidency, he needs to face the music for his obstruction of justice, perjury and witness tampering. Prosecuting him would outrage his crazy supporters. That’s too damn bad. Attorney General Garland needs to demonstrate that powerful people, even presidents, can’t trample on the law and avoid the consequences.

Things Are Not Getting Better

The news has not been good, leading various journalists to summarize the past few days the way Jamelle Bouie did for Slate:

After months of sustained public criticism from Trump, Andrew McCabe stepped down as deputy director of the FBI. The rationale behind McCabe’s decision is still not entirely known, but there’s little doubt it involves the Russia investigation. In addition to being a verbal target of Trump’s, McCabe had become a bête noire of conservative media, the subject of baroque conspiracies about a “deep state” that is allegedly conspiring against the president….

Republicans on the House Intelligence Committee voted to release a … memo [that] accuses the FBI of abusing its surveillance powers, using partisan opposition research in order to attack Donald Trump’s campaign and undermine his presidency, and singling out officials like McCabe, Deputy Attorney General Rod Rosenstein, and former FBI Director James Comey, all targets of Trump and his allies in the GOP and conservative media… Democrats on the committee have called the document a “misleading set of talking points”, and federal law enforcement officials had warned that releasing the memo would be “extraordinarily reckless”….

In the wake of this vote, Republicans on the Intelligence Committee also opened an inquiry into the FBI and the Justice Department… On Tuesday, House Speaker Paul Ryan announced his support for both moves, calling for a “cleanse” of the FBI….

What began as Trump venting on Twitter has now become official administration policy, carried out with the blessing of White House aides who were at one time seen as bulwarks against such behavior. Bloomberg reported on a phone call between White House chief of staff John Kelly and senior officials in the Justice Department, where the former conveyed the president’s “displeasure” and reminded them of his expectations, albeit adding that the White House doesn’t expect them “to do anything illegal or unethical”.

To all of this, add the fact that—during this same period of time—President Trump declined to sanction Russia for its interference in the 2016 presidential election [after Congress voted almost unanimously for new sanctions to be imposed].

Senator Claire McCaskill, a Missouri Democrat, said this about the president’s decision:

Congress voted 517-5 to impose sanctions on Russia. The President decides to ignore that law. Folks, that is a constitutional crisis. There should be outrage in every corner of this country.

There should be, but there hasn’t been. Most of us are suffering from outrage overload.

Earlier in the week, Mr. Bouie wrote about “ICE Unbound”:

[The president has unleashed] the Immigration and Customs Enforcement agency, giving it broad authority to act at its own discretion. The result? An empowered and authoritarian agency that operates with impunity, whose chief attribute is unapologetic cruelty.

…. The most striking aspect of ICE under this administration has been its refusal to distinguish between law-abiding immigrants, whose undocumented status obscures their integration into American life, and those with active criminal records—the “bad hombres” of the president’s rhetoric.

Erasing that distinction is how we get the arrest and detention of Lukasz Niec, a Polish immigrant and green card holder who was brought to the United States as a young child. Last week, ICE agents arrested Niec …, citing two misdemeanor convictions for offenses committed when he was a teenager… A practicing physician, Niec now sits in a county jail, awaiting possible deportation….

Bouie didn’t mention Amer Othman Adi, a 57-year-old Palestinian who had been in the U.S. since he was 19. A married man with four daughters, he helped revitalize the city of Youngstown by opening several businesses. He was deported to Jordan on Monday night.

It all makes these Twitter thoughts from author G. Willow Wilson worth thinking about:

It may be time to start thinking about how we can effectively push back against authoritarianism once the last of the checks and balances have fallen.

It’s a mistake to think a dictatorship feels intrinsically different on a day-to-day basis than a democracy does. I’ve lived in one dictatorship and visited several others–there are still movies and work and school and shopping and memes and holidays.

The difference is the steady disappearance of dissent from the public sphere. Anti-regime bloggers disappear. Dissident political parties are declared “illegal”. Certain books vanish from the libraries.

The press picks a side. The military picks a side. The judiciary picks a side. This part should already feel familiar.

The genius of a true, functioning dictatorship is the way it carefully titrates justice. Once in awhile it will allow a sound judicial decision or critical op-ed to bubble up. Rational discourse is never entirely absent. There is plausible deniability.

People still have rights, in theory. The right to vote, to serve on a jury, etc. The difference is that they begin to fear exercising those rights. Voting in an election will get your name put on “a list”.

So if you’re waiting for the grand moment when the scales tip and we are no longer a functioning democracy, you needn’t bother. It’ll be much more subtle than that. It’ll be more of the president ignoring laws passed by congress. It’ll be more demonizing of the press.

Until one day we wake up and discover the regime has decided to postpone the 2020 elections until its lawyers are finished investigating something or other. Or until it can ‘ensure’ that the voting process is ‘fair’.

A sizable proportion of the citizenry will support the postponement. Yes, absolutely, we must postpone elections. The opposition is corrupt! Our leader is just trying to protect us! A dictator is never without supporters.

And hey, if we pull ourselves back from the brink and the midterms go ahead and the 2020 election is free and transparent and on time, you are cordially invited to point at me and laugh. Honestly. No one will be happier to be wrong than me.

 

180 Former Federal Prosecutors Call For a Special Counsel

The Federal court for the Southern District of New York handles trials in New York City and neighboring counties. It’s the most respected trial court in America. That’s why it’s sometimes called “The Mother Court”:

We think of the Southern District as the Mother Court for many reasons beyond seniority and geographic significance. Nationally recognized for the outstanding quality of its judiciary, the excellence of the advocates who appear before it, its authoritative opinions grounded in real substance, the sensitive management of its docket, and its relevance to the rule of law, the Mother Court is the gold standard for trial courts around the United States. It is the country’s crucible of justice in the continuously unfolding history of our Nation. [American Bar Association]

It’s news, therefore, that 180 former Federal prosecutors for the Southern District are calling for Deputy Attorney General Rod Rosenstein to appoint a Special Counsel to oversee the FBI investigation into DT’s campaign and Russia [City Project]:

May 12, 2017

Rod J. Rosenstein, Esq.
Deputy Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Dear Mr. Deputy Attorney General:

We, the undersigned, are former United States Attorneys and Assistant United States Attorneys for the Southern District of New York. In view of the recent termination of James Comey as Director of the Federal Bureau of Investigation, we are writing to request that you appoint a special counsel to oversee the FBI’s continuing investigation of Russian interference with the 2016 Presidential election and related matters. This letter is addressed to you rather than the Attorney General since he has recused himself from this matter.

As you know, Jim has had a long and distinguished career with the Department of Justice, beginning with his appointment as an Assistant United States Attorney in the Southern District of New York serving under United States Attorneys Rudolph Giuliani, Benito Romano and Otto Obermaier from 1987 through 1993. He returned to the Southern District of New York in 2002 when he was appointed the United States Attorney and served in that capacity until he was confirmed as Deputy Attorney General in 2003. Most of us came to know Jim when he worked in the Southern District of New York. Many of us know him personally. All of us respect him as a highly professional and ethical person who has devoted more than 20 years of his life to public service.

While we do not all necessarily agree with the manner in which he dealt with the conclusion of the Hillary Clinton email investigation, we sincerely believe that his abrupt and belated termination for this conduct, occurring months later and on the heels of his public testimony about his oversight of the investigation of Russian interference with the 2016 presidential election, has the appearance – if not the reality – of interfering with that investigation. Even if this investigation continues unabated, there is a substantial risk that the American people will not have confidence in its results, no matter who is appointed to succeed him, given that the Director of the FBI serves at the pleasure of the President. We believe it is critical in the present political climate and clearly in the public’s interest that this investigation be directed by a truly independent, non-partisan prosecutor who is independent of the Department of Justice, as is contemplated by 28 C.F.R. §600.1.

We are Republicans, Democrats and independents. Most importantly, we are proud alumni and alumnae of the Department of Justice. We do not suggest that you or any other members of the Department of Justice or a newly appointed Director of the FBI would not conduct yourselves properly, but the gravity of this investigation requires that even the appearance of political involvement in this investigation be avoided. As former prosecutors, we believe the only solution in the present circumstances would be to appoint a Special Counsel pursuant to 28 C.F.R. §600.1, and we urge you to take that course.

Respectfully submitted,

Jonathan S. Abernethy Elkan Abramowitz Richard F. Albert
Marcus A. Asner Martin J. Auerbach Miriam Baer
Thomas H. Baer Kerri Martin Bartlett Maria Barton
Andrew Bauer Bernard W. Bell Richard Ben-Veniste
Neil S. Binder Laura Gossfield Birger Ira H. Block
Suzanne Jaffe Bloom Barry A. Bohrer Daniel H. Bookin
Jane E. Booth Katharine Bostick Laurie E. Brecher
David M. Brodsky Stacey Mortiz Brodsky William Bronner
Jennifer K. Brown Marshall A. Camp Bennett Capers
Michael Q. Carey Neil S. Cartusciello Sarah Chapman
Robert J. Cleary Brian D. Coad Glenn C. Colton
William Craco Nelson W. Cunningham Constance Cushman
Frederick T. Davis John M. Desmarais Rhea Dignam
Gregory L. Diskant Philip L. Douglas Sean Eskovitz
Jesse T. Fardella Meir Feder Ira M. Feinberg
Michael S. Feldberg Steven D. Feldman Edward T. Ferguson
David Finn Eric P. Fisher Sharon E. Frase
Steven I. Froot Maria T. Galeno Catherine Gallo
Robert Garcia Kay K. Gardiner Ronald L. Garnett
Scott Gilbert Barbara S. Gillers Mark Godsey
Joshua A. Goldberg James A. Goldston Mark P. Goodman
George I. Gordon Sheila Gowan Stuart GraBois
Paul R. Grand Helen Gredd Bruce Green
Marc L. Greenwald Jamie Gregg James G. Greilsheimer
Jane Bloom Grise Nicole Gueron Barbara Guss
Steven M. Haber Jonathan Halpern David Hammer
Jeffrey Harris Mark D. Harris Roger J. Hawke
Steven P. Heineman Mark R. Hellerer William Hibsher
Jay Holtmeier John R. Horan Patricia M. Hynes
Linda Imes Douglas Jensen James Kainen
Eugene Kaplan Steven M. Kaplan William C. Komaroff
David Koenigsberg Cynthia Kouril Mary Ellen Kris
Stephen Kurzman Nicole LaBarbera Kerry Lawrence
Sherry Leiwant Jane A. Levine Annmarie Levins
Raymond A. Levites Donna H. Lieberman Jon Liebman
Sarah E. Light Jon Lindsey Robin A. Linsenmayer
Edward J.M. Little Mary Shannon Little Walter Loughlin
Daniel Margolis Walter Mack Kathy S. Marks
Mark E. Matthews Marvin S. Mayell Sharon L. McCarthy
James J. McGuire Joan McPhee Christine Meding
Paul K. Milmed Judith L. Mogul David E. Montgomery
Lynn Neils Peter Neiman Rosemary Nidiry
Tai H. Park Robert M. Pennoyer Elliott R. Peters
Michael Pinnisi Robert Plotz Henry Putzel
T. Gorman Reilly Emily Reisbaum Peter Rient
Roland G. Riopelle Michael A. Rogoff Benito Romano
Amy Rothstein Thomas C. Rubin Daniel S. Ruzumna
Robert W. Sadowski Elliot G. Sagor Peter Salerno
Joseph F. Savage John F. Savarese Edward Scarvalone
Kenneth I. Schacter Frederick Schaffer Gideon A. Schor
Julian Schreibman Wendy Schwartz Linda Severin
David Siegal Marjorie A. Silver Paul H. Silverman
Charles Simon Carolyn L. Simpson David Sipiora
Dietrich L. Snell Peter Sobol Ira Lee Sorkin
David W. Spears Katherine Stanton Franklin H. Stone
Richard M. Strassberg Howard S. Sussman Erika Thomas
Richard Toder Timothy J. Treanor Paula Tuffin
Peter Vigeland David Wales Max Wild
Samuel J. Wilson Elaine Wood Paulette Wunsch
Thomas Zaccaro Ellen Zimiles  

cc: Jefferson B. Sessions III, Esq.
Attorney General of the United States

This letter reflects the signers’ personal views, not of the U.S. Attorney’s Office for the Southern District of New York, the U.S. Department of Justice, or any other government agency.

Note: It represents my personal views too, although I carry no weight with the Department of Justice and they’re too nice to Comey.

PS: It’s actually 179 former prosecutors, but as we used to say, that’s close enough for government work.